Law Commons^™

Communicating With The Impatient, Skeptical Legal Reader: The Thesis Sentence, Michael J. Higdon

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No abstract provided.

Online Platforms And The Eu Digital Single Market, Maurice Stucke, Ariel Ezrachi

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Our submission to the U.K. House of Lords, Internal Market Sub-Committee is based on our joint research, which explores the effects Big Data and technology have on competition dynamics. It reviews the use of technology to facilitate collusion, conscious parallelism, and unilateral price discrimination as well as the effects of online and mobile platforms.

Our submission addresses the following issues: • What role does data play in the business model of online platforms? • Can data-driven online platforms have excessive market power? • If so, how can they abuse this power? • If so, how does this happen and what …

Book Review - Middle Income Access To Justice, Benjamin H. Barton

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This is a solicited book review of the excellent Canadian book Middle Income Access to Justice (Michael Trebilcock, Anthony Duggan, & Lorne Sossin, eds., 2012) from the Toronto Law Review.

Limiting Credit Bidding For "Cause" Under § 363(K): Contra Philadelphia Newspapers Footnote 14, George Kuney

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No abstract provided.

Abortion, Amendment 1, And The Future Of Procreational Rights Under The Tennessee Constitution, Glenn Harlan Reynolds

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No abstract provided.

Employment Discrimination In Legal Education: Selected Readings Relating To Women, Minorities, And Legal Writing, Lucille Jewel

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This bibliography is a collection of selected readings that address discrimination issues and attitudes relating to the employment of women and minorities in legal education.

Teaching The Newly Essential Knowledge, Skills, And Values In A Changing World, Paula Schaefer, Lisa Bliss, Robin A. Boyle, Sylvia B. Caley, Deborah L. Rhode

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This chapter of Building on Best Practices: Transforming Legal Education in a Changing World has contributions from many authors:

• Section A, Professional Identity Formation, includes:
  • Teaching Knowledge, Skills, and Values of Professional Identity Formation, by Larry O. Natt Gantt, II & Benjamin V. Madison III,
  • Integrating Professionalism into Doctrinally-Focused Courses, by Paula Schaefer,
  • Learning Professional Responsibility, by Clark D. Cunningham, and
  • Teaching Leadership, by Deborah L. Rhode.
• Section B, Pro Bono as a Professional Value, is by Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Susan Schechter, David S. Udell & Eliza Vorenberg.
• Section C, The Relational Skills of the …

The Ties That Bind: Llc Operating Agreements As Binding Commitments, Joan Macleod Heminway

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This essay, written in honor and memory of Professor Alan R. Bromberg as part of a symposium issue of the Southern Methodist University Law Review, is designed to provide preliminary answers to two questions. First: is a limited liability company (“LLC”) operating agreement (now known under Delaware law and in certain other circles as a limited liability company agreement) a contract? And second: should we care either way? These questions arise out of, among other things, a recent bankruptcy court case, In re Denman, 513 B.R. 720, 725 (Bankr. W.D. Tenn. 2014).

The bottom line? An operating agreement may or …

Debunking The Myths Over Big Data And Antitrust, Maurice Stucke, Allen Grunes

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What are the implications of Big Data on competition policy? Some argue little, if any, and offer several reasons why Big Data is a passing fad. We disagree.

As we discuss, competition law can play an important role in maximizing the benefits of a data-driven economy, while mitigating its risks. Our aim here is to first address the competitive significance of Big Data and, second, take on ten myths downplaying Big Data’s antitrust significance.

The Third Amendment In The 21st Century, Glenn Harlan Reynolds

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No abstract provided.

Third Amendment Penumbras: Some Preliminary Observations, Glenn Harlan Reynolds

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In the landmark case of Griswold v. Connecticut, the Supreme Court told us that the Third Amendment casts a penumbra. This Essay, part of a Tennessee Law Review symposium on the Third Amendment, looks at the Third Amendment, and its construction in such cases as Griswold and Engblom v. Carey, to conclude that the Third Amendment's penumbral protections may extend to protect areas of domestic concern against state interference in the form of things like "affirmative consent" laws, regulation of childrearing practices, and invasions of electronic privacy. It concludes with some thoughts on how the Third Amendment should be read …

Breaking The Fever: A New Construct For Regulating Overtreatment, Isaac ("Zack") D. Buck

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The Department of Justice’s (“DOJ”) current theory of overtreatment regulation — and, in fact, all of the prominent amount of medical necessity-based health care fraud enforcement — adopts the argument that providers are violating the False Claims Act when they submit bills to the federal government for care they administered that is not medically necessary. Besides stoking the ire of the provider community, this regulatory strategy is susceptible to inefficiency, imprecision, and — as I have argued before — overuse. Whether a procedure was medically necessary can be a highly difficult question to answer, one easily swayed by clinically-complex details, …

No Mistake About It: The Important Role Of Antitrust In The Era Of Big Data, Maurice Stucke, Allen Grunes

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Competition authorities in Europe (and to a lesser extent in other jurisdictions) are beginning to make data, its uses, and its implications for competition law, a key focus. Some, however, argue that competition law has a limited role to play in the era of big data. We respectfully disagree. Competition law will play an integral role to ensure that we capture the benefits of a data-driven economy while mitigating its associated risks.

After outlining several implications of big data on competition policy, we address some of the myths about big data and competition law. These myths paint with a broad …

"All Writs" In Bankruptcy And District Courts: A Story Of Differing Scope, George Kuney

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No abstract provided.

Registering Trade And Service Marks In Tennessee: A Brief How-To Guide, Brian Krumm, Zackarij R. Gardner

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No abstract provided.

Teaching Business Associations With Group Oral Midterms: Benefits And Drawbacks, Joan Macleod Heminway

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I focus in this Article on a particular way to assess student learning in a Business Associations course. Those of us involved in legal education for the past few years know that “assessment” has been a buzzword...or a bugaboo...or both. The American Bar Association (ABA) has focused law schools on assessment (institutional and pedagogical), and that focus is not, in my view, misplaced. Until relatively recently, much of student assessment in law school doctrinal courses was rote behavior, seemingly driven by heuristics and resulting in something constituting (or at least resembling) information cascades or other herding behaviors.

In the fall …

If It Ain't Broke, Break It - How The Tennessee General Assembly Dismantled And Destroyed Tennessee's Uniquely Excellent Judicial System, Penny White

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No abstract provided.

What Do We Owe The Pro Se Litigant?, Nathan A. Preuss

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No abstract provided.

Embracing A Rich Diversity Promoting Diversity Among Patrons And Staff, Shamika Dalton

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No abstract provided.

The Criminality Of "Tax Planning", Michelle M. Kwon

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In recent years, the federal government has adopted an aggressive prosecution policy that targets tax advisors who help their clients evade taxes. Increased prosecutions coupled with the present-day sophistication of tax practice call for a critical examination of the willfulness standard applied to tax advisors who use the Code and Treasury regulations as part of their regular practices. This is something no previous legal scholarship has done. To establish willfulness, the government must show that a person accused of a tax crime intentionally violated a known legal duty. Because knowledge of illegality is an element of the government's tax evasion …

Finding New Inspiration In The Adaaa, Alex B. Long

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No abstract provided.

The Curious Case Of Competition And Quality, Maurice Stucke, Ariel Ezrachi

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Alongside the consideration of price, competition authorities recognize that quality can be as, if not more, important in some markets. But as competition authorities also recognize, identifying the dimensions of competition important to many consumers is difficult. Even when these dimensions of quality are identified, measuring them represents additional challenges.

To circumvent these challenges, competition authorities rely on several heuristics when assessing a merger’s, cartel’s or monopolistic restraint’s impact on quality. Often the heuristics work well for the competition authorities.

Our paper, however, identifies several scenarios where these heuristics break down, when competition and quality are not positively correlated, and …

A Response To Professor Sperino's Retaliation And The Unreasonable Judge, Alex B. Long

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No abstract provided.

Enforcement Overdose: Health Care Fraud Regulation In An Era Of Overcriminalization And Overtreatment, Isaac ("Zack") D. Buck

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In an effort to address the growing problem of “overtreatment” in American health care, the federal government has turned to its 150-year-old statute, the civil False Claims Act (FCA) to prosecute providers who do too much. Lacking many of the traditional hallmarks of conventional health care fraud scenarios, this new enforcement framework features cases in which the government alleges that a provider is administering health care that is inefficient, too costly, or unnecessary. As I have argued before, in addition to ensnaring “innocent” providers, this regulatory regime allows the federal government to both (1) freeze practice standards by arresting their …

Oil And Water: How Legal Education's Doctrine And Skills Divide Reproduces Toxic Hierarchies, Lucille Jewel

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The longstanding categorical distinction that elevates doctrinal teaching over skills teaching continues to harm the profession of law. In this Article, I consider two distinct effects produced by the doctrine/skills dichotomy. First, the dichotomy is responsible for reinforcing class, gender, and race segmentation in legal education, which limits the quality of instruction that law schools can provide and abets the reproduction of existing power relations in the legal profession and society at large.

Second, the antipodal positioning of doctrine and theory over skills and practice harms law schools’ ability to prepare a new generation of law students to engage in …

Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler Ag V. Bauman, Judy Cornett

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This article shows that the Supreme Court's opinion in Daimler AG v. Bauman (2014) marks a significant departure from settled practice. It argues that the decision's restriction of general jurisdiction will prevent reasonable access to courts in some cases, eroding the power of state courts for the sake of achieving policy goals that are more appropriate for the political branches.

Side Effects: State Anti-Fraud Statutes, Off-Label Marketing, And The Solvable Challenge Of Causation, Isaac ("Zack") D. Buck

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While the American public remains preoccupied with the lurching implementation of the Affordable Care Act, the regulation of pharmaceutical companies for their off-label marketing and promotion of drugs is a regulatory environment within the health industry that seems to be in wild flux. Following the Second Circuit’s decision in U.S. v. Caronia, commentators and providers seem unclear about the future of federal regulation in this area, with the FDA seeking to minimize the opinion, and pharmaceutical companies celebrating its impact. Much of the understandably spirited reaction to the Caronia case has omitted a discussion of the relevant and applicable state-law …

The Symbiotic Relationship Between Privacy Law And Anti-Discrimination Law, Alex B. Long

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No abstract provided.

What Is Even More Troubling About The "Tortification" Of Employment Discrimination, Alex B. Long

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No abstract provided.

Chinese Real Estate Law And The Law And Development Theory: Comparing Law And Practice, Gregory M. Stein

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No abstract provided.